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Here We Go Again: At Republican Debate, Pawlenty Denies Constitutional Text and History Establishing Birthright Citizenship

June 14, 2011

In New Hampshire’s Republican presidential debate this week, former Minnesota Governor Tim Pawlenty made the following remarkable statement:

This issue of birthright citizenship, again, brings up the importance of appointing conservative justices. That result is because the U.S. Supreme Court determined that that right exists, notwithstanding language in the Constitution.

Is it remarkable that Pawlenty supports appointing conservative justices to the Supreme Court?  Of course not.  But it is truly astonishing for a candidate for President of the United States to speak with such ignorance of the words of the Constitution.  After all, the Constitution itself, in Article II, section 1, requires the President to swear or affirm that he or she will “preserve, protect and defend the Constitution of the United States.”  That’s pretty hard to do if you don’t know what the Constitution says.

The Constitution’s 14th Amendment provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  This language plainly lays out a constitutional rule of citizenship at birth.  No question.

Pawlenty’s claim that “the U.S. Supreme Court determined that [the right to citizenship at birth] exists, notwithstanding language in the Constitution,” is thus totally mind-boggling given that the Constitution spells out such a right.  But let’s give Pawlenty the benefit of the doubt and assume that he intended to make a narrower point: that activist judges somehow made up the rule that constitutional citizenship attaches at birth for children born on U.S. soil to non-citizens.  Such a claim would be flat wrong as well.

In fact, one thing that is striking when you compare the debate over birthright citizenship today with the debates in Congress in 1866 over the 14th Amendment’s Citizenship Clause is that, in 1866, both the proponents and opponents of the Citizenship Clause agreed that the Clause recognizes and protects birthright citizenship for the children—including children of aliens—born on U.S. soil.  (It should be noted, however, that birthright citizenship today is not necessarily a partisan issue.  Many prominent conservatives, from Linda Chavez to Lou Dobbs, recognize that the Constitution provides citizenship at birth for children born on U.S. soil, including children born to undocumented immigrant parents.)

Contrary to some assertions that the Citizenship Clause was solely about ensuring citizenship for children born into slavery, the 1866 Congress expressly considered citizenship at birth for children of “foreigners.”  For example, Sen. Edgar Cowan expressed concern that the citizenship proposal would expand the number of Chinese in California and Gypsies in his home state of Pennsylvania by granting birthright citizenship to their children, even (as he put it) the children of those who owe no allegiance to the United States and routinely commit “trespass” within the United States.  Supporters of the Citizenship Clause did not take issue with Cowan’s understanding of the effect of the Clause, but instead defended it as a matter of sound policy.  Whether the members of the Reconstruction Congress understood the Citizenship Clause to be a welcome turn toward equality—and voted for it—or a worrisome invitation to foreign migrants—and voted against it—both sides agreed on the enacted Clause’s meaning.

While the U.S. Supreme Court by no means created the constitutional rule of citizenship at birth, it has consistently applied the plain meaning and clear history of the citizenship provision.  And we’re not talking about so-called “activist liberal judges” from the 1960s.  In 1898, in United States v. Wong Kim Ark, the Court held that a U.S.-born child of Chinese immigrants was entitled to citizenship, explaining that the “14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory . . . including all children here born of resident aliens.” Nearly a century later, in 1982, the Supreme Court affirmed in Plyler v. Doe that the 14th Amendment extends to anyone “who is subject to the laws of a state,” including the U.S.-born children of unlawful aliens.  Similarly, in the 1985 case INS v. Rios-Pineda, the Court stated that a child born on U.S. soil to an undocumented immigrant parent was a U.S. citizen from birth.

In contradiction to more than a century of constitutional law and history, Pawlenty’s claim that activist judges created “birthright citizenship” inaccurately portrays the right to constitutional citizenship as an ephemeral, changeable “right” that can and should be taken away be taken away by the courts, rather than a right that is safeguarded by our Nation’s charter.  As James Ho, former Texas Solicitor General, counsel to Sen. John Cornyn and clerk to Justice Clarence Thomas has explained, “Birthright citizenship is guaranteed by the Fourteenth Amendment.  That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”

Pawlenty’s statement at the New Hampshire debate shows that he has either ignored or is ignorant of the Constitution’s clear language and the long history of constitutional birthright citizenship.  He should be asked to explain which it is.  Either way, it is deeply troubling.